Here is a very interesting piece from the WSJ on the LTG Helms nomination. Her career and the facts of the case make Sen. McCaskill’s “permanent hold” on her nomination to be Vice Commander of Air Force Space Command seem a little . . . over the top? H/t KF
Category: Military Justice Legislation
Here is an ArmytTimes report on Sen. Gillibrand’s victory today in the SASC Personnel Subcommittee. Her Military Justice Improvement Act of 2013 apparently won approval in her subcommittee without debate, reports Army Times. But the NY Daily News, here, and others report that Sen. Levin, SASC chair, will propose an alternative to the sweeping change in the MJIA. Sen. Levin’s amendment will reportedly offer “an alternative measure that requires automatic review of any general’s decision not to prosecute sexual assault at the next level of command during the committee’s markup of an annual defense authorization bill Wednesday.”
In light of the recent controversy related to sexual assaults in the military and reform of the UCMJ, a group of law professors have drafted a sort of wish list for studies and reforms in the wake of the controversy. Available here. The list of professors is long and distinguished . . . so I’ll just name a few:
- Eugene R. Fidell, Senior Research Scholar in Law and Florence Rogatz Visiting Lecturer in Law, Yale Law School; U.S. Coast Guard, 1969-72.
- David J. R. Frakt, Visiting Professor of Law, University of Pittsburgh School of Law; Lieutenant Colonel, USAFR, U.S. Air Force JAG, 1995-2005, Reserve Air Force JAG, 2005-present.
- Eric M. Freedman, Maurice A. Deane Distinguished Professor of Constitutional Law, Maurice A. Deane School of Law at Hofstra University.
- Diane H. Mazur, Professor of Law, University of Florida College of Law; U.S. Air Force, 1979-83.
- Stephen A. Saltzburg, Wallace and Beverley Woodbury University Professor of Law, Co-Director, Litigation and Dispute Resolution Program, George Washington University Law School.
Here is the current hearing link for SASC’s full committee hearing on Pending Legislation Regarding Sexual Assaults in the Military. In a rare appearance, all of the JCS members and all of the service JAGs–impressive photo here–along with the Chief Legal Counsel for the JCS, argued for convening authorities to retain their authority over sexual assault cases. Panel two has O-6 commanders from the four services, including one of my old commands COMDESRON TWO.
Here is a new NYT debate page featuring varying viewpoints on how to ensure victims of sexual assault in the military receive justice. The debate cover page unfortunately starts with an inaccurate portrayal of the current situation:
The frequency of sexual assaults in the military, the rarity of prosecution in these cases and the fact that military commanders often dismiss convictions have led Congress and the Pentagon to consider changing the military justice system.
To combat sex abuse do reforms need to be made to the existing procedures, or does the whole military justice system need to be overhauled?
I haven’t read the various opinions, but here are links to the current ones featuring three NIMJ members:
- Eugene R. Fidell, Yale law school, Broad Changes Are Needed
- Richard D. Rosen, Center for Military Law and Policy, Commanders Must Play a Crucial Role
- Sen. Claire McCaskill, Don’t Let Commanders Void Convictions
- Amos N. Guiora, Former Israeli judge advocate, Israel Separates Command and Criminal Justice
- Hardy Vieux, Former Navy lawyer, A Compromise Is Best
- Elizabeth L. Hillman, National Institute for Military Justice, Get Civilian Authorities Involved
I don’t have a lot of time so I’ll do this in bullet format:
- BE SAFE Act, co-sponsored by Reps. Tsongas and Turner was submitted on May 8, 2013. Links to the release and the bill.
- CNN’s State of The Union had Congresswomen Tulsi Gabbard (D-HI) and Tammy Duckworth (D-IL) on yesterday to discss military sexual assaults and changing the MilJus system, here.
- WaPo angle on the recruiter portion of the sexual assault problem in the military, linking the Lackland MTI cases and the issue du jour, here.
- Roll Call says, here, that “Pressure Building to Address Military Sexual Assault in Defense Bill.”
USA Today Headline: Sexual assaults in the military up 35% since 2010 [links to 2012 data now available]By
The headline says it all. As we mentioned before, here, the figures in these DoD reports are unfortunate for the MilJus system because they are taken out of context when thrown about on the Hill or in the media. Here’s what USA Today says about the 2012 numbers:
Pentagon estimates of how many troops are sexually assaulted show the numbers increased by more than a third since 2010, from 19,300 servicemembers believed to be victims that year to 26,000 in 2012, according to a Defense Department survey to be released this week.
Whatever you want to say about the numbers, I think this report and the AF SAPR head’s arrest for sexual assault, here, may be the death knell for the MilJus system as we know it . . . at a minimum in sexual assault cases, but possibly more broadly. Here is the USAToday story and here is a link to the DoD annaul SAPR report page (which doesn’t yet have the 2012 report).
Update: Here is the official DoD press release on the former AF SAPR office head’s arrest.
Here’s a link to Secretary of Defense Hagel’s statement issued today announcing his proposal to amend Article 60. He recommends “eliminating the discretion for a convening authority to change the findings of a court-martial, except for certain minor offenses that would not ordinarily warrant trial by court-martial.” And his proposed change would require “the convening authority to explain in writing any changes made to court-martial sentences, as well as any changes to findings involving minor offenses.”
That strikes me as the most modest revision to Article 60 possible in the current political environment.
Secretary Hagel’s statement repeats the now-familiar trope that “[w]hile convening authorities would no longer have the ability to dismiss charges for serious offenses like sexual assault, defendants would continue to have access to a robust system of appeal rights.” As we know, that’s not true for some servicemembers convicted by court-martial, who — baased on their sentence – may suffer a lifetime of sex offender registration, forfeiture of the right to own firearms, stigmatization by a federal criminal conviction, or other onerous collateral consequences without ever having a right to appeal their conviction to a higher military court.
Sen. McCaskill’s bill to amend Article 60(c) (plus some thoughts on the current countretemps over CAs’ power to alter findings)By
The text of Senator McCaskill’s bill to amend Article 60(c) is now available here. Something like this is probably the least disruptive change that’s likely to result from the aftermath of Lieutenant General Franklin’s exercise of his discretion to set aside the findings of guilty in Lieutenant Colonel Wilkerson’s case. It would take away the CA’s power to set aside a finding of guilty or knock it down to an LIO while preserving the CA’s power to change the sentence if accompanied by a written justification.
I don’t expect any standalone bill like Senator McCaskill’s or Representative Speier’s to pass. Rather, I expect any change to Article 60(c) to be adopted as part of the National Defense Authorization Act for Fiscal Year 2014. But as Congress considers changes to the UCMJ arising from the current focus on sexual assault cases, it should keep in mind the sage advice offered by Major General Vaughn Ary, the Staff Judge Advocate to the Commandant of the Marine Corps.
During his testimony to the U.S .Commission on Civil Rights in January, Major General Ary observed that some part of the military justice system that might, at first blush, seem overly protective of an accused is often there to compensate for some deficiency in another area. We shouldn’t change the one area without being mindful of how such a change might ripple through the system.
One of the frustrating arguments at the SASC military personnel subcommittee hearing about the issue was that the CA’s power to set aside the findings of guilty is no longer necessary because the military justice system how has a “robust” appellate review. Of course, that’s not really true. While Chairman Levin spoke of the right to appeal a conviction to a higher military court, some servicemembers appear to be the only criminal defendants in the United States who can be convicted of a criminal offense without any right to appeal to a higher court. A servicemember can be convicted at a contested court-martial resulting in lifelong sex offense registration, residence restrictions, prohibition against owning firearms or ammunitions, disenfranchisement, and other collateral consequences without any right to appeal to a higher military court if the servicemember doesn’t happen to also receive a punitive discharge and/or a year or more of confinement. Servicemembers also appear to be the only criminal defendants in the United States who don’t have a guaranteed right to Supreme Court review of their case. During the hearing, Senator Graham spoke imprecisely by saying that a military accused did have such a right. While Supreme Court review in a military justice case is possible, the vast majority of servicemembers convicted at court-martial, even in contested cases, will never have the right to seek Supreme Court review of their conviction.
Let’s consider Lt Col Wilkerson’s conviction. A number of SASC members referred to his conviction by a jury. Of course, Lt Col Wilkerson didn’t have a jury — he had a court-martial panel. Noting that distinction isn’t some tyranny of labels. There is no such thing as a five-member criminal jury. In fact, the Supreme Court has held that it’s unconstitutional for a criminal jury to have fewer than six members. Ballew v. Georgia, 435 U.S. 223 (1978). The Supreme Court has also held that it’s unconstitutional to have a six-member jury convict a criminal defendant upon a non-unanimous vote. Burch v. Louisiana, 441 U.S. 130 (1979). Yet Lt Col Wilkerson was convicted by a five-member panel with only four votes being necessary to convict. Had he been tried by a “jury,” we have no idea whether he would have been convicted. So if we’re going to reform Article 60(c), are we also going to give a servicemember a right to be tried by a six-member court-martial panel that must be unanimous in its result? (SCOTUS, of course, has at 10-2 or 9-3 vote to convict in a criminal case is constitutionally permissible. Johnson v. Louisiana, 406 U.S. 356 (1972); Apodaca v. Oregon, 406 U.S. 404 (1972)).
The CA’s power to set aside findings has traditionally been offered as part of the justification for not giving servicemembers other appellate rights, such as the a guaranteed right to appeal upon a criminal conviction. If Senator McCaskill’s bill is adopted – either as standalone legislation or as part of the NDAA — will Congress also extend the right to judicial appellate review to all servicemembers convicted by courts-martial? Are the members of SASC and HASC who are considering amending Article 60(c) even aware that some servicemembers have no right to judicial appellate review, much less a right to a “robust” appeal?
During the afternoon panel of the SASC military personnel subcommittee dealing with sexual assault in the military, Senator Lindsey Graham (R-S.C.) reviewed the number of instances in which CAs have set aside findings of guilty. (It starts at 41:33 of this link.) In the United States Marine Corps from 2010-2012, there were 1,768 SPCM and GCM cases resulting in convictions and in only 7 cases (0.4%) did the CA disapprove the findings of guilty, none in a sexual assault case. In the Air Force, over the last 5 years, convening authorities set aside findings in 40 cases out of 3,713 cases (1.1%) – 5 in sexual assault cases. The Navy doesn’t have a system for tracking convening authorities’ Article 60 dispositions, but a survey found only 1 instance of a CA setting aside findings; that was in a sexual assault case. In the Army, since 2008, out of 4,603 cases with convictions, the convening authority set aside the findings in 68 (1.48%), none of which were sexual assault cases. In the Coast Guard, out of more than 200 cases convened, the convening authority set aside a finding of guilty to at least 1 specification in 3 cases.
As Phil “My Liege” Cave noted, HASC’s blog includes this post with a copy of a letter that HASC’s leadership — both Republicans and Democrats — sent to Secretary Hagel about CAs’ clemency power.
The letter indicates that HASC’s leadership is concerned with the statutory authority of CAs to overturn a guilty verdict. The letter also contemplates that the 2014 National Defense Authorization Act will include an amendment to Article 60(c). The letter asks SecDef to provide HASC with certain information, including: “An analysis of how other military justice systems address the role of the convening authority in courts-martial.” Given the ongoing debate about the appropriateness of American courts relying on decisions from other countries’ courts, this provides a useful reminder that the legislative branch is certainly free to review best practices from other countries when considering the optimal approach for the United States.
During today’s SASC Subcommittee on Personnel hearing, Senator Gillibrand (the subcommittee’s chair) mentioned Senator McCaskill’s bill to limit CAs’ post-trial powers. Here’s a post from Senator McCaskill’s website about the bill, S. 538. The bill isn’t yet available on Thomas, but according to the statement on Senator McCaskill’s website, unlike Representative Speier’s bill, it wouldn’t take away CAs’ power to reduce the sentence, though it would require the CA to provide an written justification when doing so. Senator McCaskill’s bill would apparently take away CAs’ power to set aside findings.
As noted in Rep. Jackie Speier’s press release here, “Representatives Jackie Speier (D-San Francisco/San Mateo), Bruce Braley (D-IA), and Patrick Meehan (R-PA) today introduced the bipartisan Military Judicial Reform Act to strip military commanders of the unilateral power to overturn convictions or lessen sentences handed down by judges and juries at courts martial.”
The bill’s text is available here. The bill would require the convening authority to “approve of the sentence in whole.”
The bill does away with the SJAR and the CA’s suspension power as well. The legislation would preserve the CA’s authority to waive automatic forfeitures for up to six months — a power CAs often exercise for the benefit of the accused’s family. In what might be a drafting error, however, the bill appears to eliminate the CA’s power to waive adjudged forfeitures for the benefit of the accused’s family.
If approved, among other effects, this legislation would likely vastly increase the number of contested court-martial cases, since a PTA couldn’t be negotiated with the CA, as in current military justice practice (a point LtCol Winklosky of the Army JAG School made in his comment to this 31(b)log post).
Here’s a link to video of the bill sponsors’ press conference.